Knoxville's Battle Over 287(g)

Local activists fight Knox County's plan to implement a controversial immigration enforcement program

Paige Huntoon

1:00 PM, Aug 14, 2013

Immigrants and allies gather in front of the federal courthouse on Cumberland Avenue on Aug. 5 to encourage Rep. Jimmy Duncan to vote in favor of immigration reform.

De Ann Pendry, right, is a member of the Allies of Knoxville’s Immigrant Neighbors, and frequently translates at events.

Rev. John Gill (left) and Rev. Jim Sessions both marched in support of immigration reform on Aug. 5.

Last August, Fran Ansley was arrested for civil disobedience during a protest against the 287(g) program.

About 100 immigrants and allies marched along Gay Street, to the federal courthouse, and then to Krutch Park last week to show their support for immigration reform.

De Ann Pendry attended the protest last August, where she translated immigrants’ testimonies.

In early July, about 100 people convened in the stuffy auditorium of the Knox County Health Department building in North Knoxville. County Commissioner Amy Broyles had called the meeting in order to give people a chance to learn about Sheriff Jimmy "J.J." Jones' plan to implement the immigration policy 287(g), a U.S. Immigration and Customs Enforcement program that deputizes local law enforcement officers to act as immigration agents when someone who cannot prove their residential status is arrested.

After opening remarks from the sheriff and Capt. Terry Wilshire, the deputy who would be in charge of the policy, Broyles announced a question and answer session. The line of people started at the front of the room and went almost all the way to the back row of seats. Most of those in the line were advocates, though there were a handful of immigrants who waited to tell their own stories to the sheriff. Broyles started handing people numbered cards so they could sit down. Occasionally, the crowd would scoff at something the sheriff said.

Person after person stood up at the microphone, faced Jones, and shared stories of friends, family, and neighbors being singled out in Knoxville and around Tennessee for looking different. Maya Sheppard, a Knox County assistant public defender in the misdemeanor crimes division, asked if Jones had read the American Civil Liberties Union study that had found rampant racial profiling in Davidson County because of 287(g). Emma Cosigua, who immigrated to the U.S. from Guatemala, warned that immigrants were easy to pick out because "they don't look like most people in Knoxville." Daniel Snider and many others recounted the multiple attempts to meet with Jones in the last year to express the community's fears about the program.

"I hear your concerns," the sheriff said many times throughout the night, and again at the very end, close to 9 p.m. "[But] I have to make the decisions for Knox County [sheriff's department]."

And so far, he has. For more than a year, immigrant-advocacy groups—whose members include immigrants themselves, non-immigrant "allies" who help advocate for immigrants, church members and clergy, and people simply seeking fair treatment for immigrants—have known about Jones' desire to implement 287(g) in Knox County, and have been trying to get responses to their questions and concerns. Jones has refused, with the exception of the July 2 community meeting. He's repeatedly stated he wanted to have the 287(g) memorandum of agreement from ICE in his possession before he answered questions.

Since Jones still isn't talking, even to the media, about what his goals and intentions are for the controversial program, a trio of University of Tennessee professors have filed a Freedom of Information Act request seeking any e-mail communication between ICE and the Knox County Sheriff's Office , or any documents sent between the two agencies. Meanwhile, the Tennessee Immigrant and Refugee Rights Coalition has delivered a letter to the Department of Homeland Security signed by multiple advocacy groups, including the Comite Popular de Knoxville and the Allies of Knoxville's Immigrant Neighbors, to urge the federal government not to move forward with 287(g) in Knoxville in light of both the program's consequences in Nashville and Jones' extremely limited communication regarding the policy.

That FOIA request revealed that Jones signed the agreement ICE had sent him on July 10, just a week after the public meeting. He has not announced that publicly, and declined to comment in any capacity for this story. ICE need only sign the agreement as well in order to get the ball rolling on starting 287(g) in Knox County.

But there's a possibility the program might not go forward at all. Secure Communities, a program created when the Obama Administration took over in 2009, does essentially the same thing as 287(g), but with significant differences in how it determines whether someone is a legal resident or not. Secure Communities uses fingerprints, while 287(g) only requires the lack of documents showing proof of legal residency. Meanwhile, the Department of Homeland Security has slowly been decreasing the amount of money dedicated to 287(g) programs. Now it's up to the feds to decide whether they want to invest in a new 287(g) program or continue using Secure Communities, which has been used in Knox County since 2010.

The potential consequences of 287(g) have been documented, particularly in Nashville, and this is why immigrants, advocates, and faith groups in Knoxville are adamant that it not be implemented here. And they believe their message is being heard in Washington, D.C.

***

The 287(g) program comes from section 287(g) of the United States' immigration laws. The section was added to the Illegal Immigration Reform and Immigrant Responsibilities Act in 1996, and authorizes the director of Immigration and Customs Enforcement to enter into agreements with local law-enforcement agencies to allow designated officers to perform certain ICE duties (after being trained to do them).

It was designed to be a more efficient use of ICE resources—let officers at the street-level pick up undocumented immigrants, instead of dispatching ICE agents everywhere. If someone who is arrested and taken to jail cannot prove he or she is a legal resident of the United States, deputized local officers can hold that person at the jail until an ICE officer picks them up and takes them to a federal facility for undocumented immigrants. People arrested in Knoxville are usually taken to a jail in either Alabama or Louisiana (the regional ICE field office is in New Orleans).

There are now 39 local law-enforcement agencies (mostly sheriff's offices) in 29 states that have agreements with ICE to implement 287(g). There are only two new agreements currently pending (Knox County and Horry County, S.C.). As Jones repeatedly pointed out on July 2, the program in Knox County would be completely funded by the federal government, and shouldn't involve Knox County tax dollars. Jones also emphasized that he'd have the power to cancel the program at any time, and indicated he'd do so if it ever started costing more money. ICE is committed to paying for deputized officers' training, any computers and software needed, and will pay a per diem when people who are arrested leave state custody (for the original charge), and become ICE detainees. Detainers last up to 48 hours, not including weekends or holidays. If ICE hasn't picked up the person being held, they're released.

One of the basic reasons Davidson County Sheriff Daron Hall was granted a 287(g) memorandum of agreement in 2007 was that there had been some major incidences involving undocumented immigrants. One undocumented immigrant drove drunk, and killed two people on the road. The public wanted something done. And 287(g) was Hall's solution. But Davidson County's Hispanic population is significantly larger than Knox County's. According to 2010 census data, there are about 61,117 Hispanic people in Davidson County, or 10 percent of the total population. In comparison, there are about 15,012 Hispanic people in Knox County, and make up 3 percent of the population. The Pew Research Center used census figures to estimate the number of undocumented immigrants statewide, which they place at about 140,000, or just 2.2 percent of the state's population. Loida Velazquez, a retired adjunct professor at UT who's worked on educational issues with the Hispanic community here for decades, estimates that about a quarter of Knox County's Hispanic population is undocumented. "It's not that big in this area," she says.

Davidson County used the "jail enforcement model" of 287(g) versus the "task force model," which is no longer used by ICE. Another reason several people, including Stephen Fotopulos, executive director of the Tennessee Immigrant and Refugee Rights Coalition (TIRRC), believe Hall may have had for implementing 287(g) was that his department had just moved into a brand new jail, and saw an opportunity to make money.

"They'd just built this new detention facility that was mostly empty. As long as it was empty, why not have federal detainees there that garnered a per diem?" Fotopulos says.

Davidson County's local government structure relegates the sheriff's duties to only running the jails. Davidson County Sheriff's deputies are not patrolling the street like Knox County deputies.

"I believe our sheriff asked for this because he wanted to increase his overall authority. I think he wanted to add to the list of responsibilities that his office had," Fotopulos says.

Prior to fully implementing the program, Fotopulos says the sheriff made an effort to communicate with advocacy groups and immigrants about their concerns about 287(g), and how the possible pitfalls could be avoided. Hall created a council of local stakeholders to keep an eye on how the program was working and to offer suggestions for improvements. Fotopulos, who was TIRRC's policy director at the time, served on that council.

"Early on, some of the procedural issues were smoothed out because of discussion with the advisory council," Fotopulos says.

It seemed like Hall would be open to suggestions and work to make the program less detrimental to the immigrant community. But that wasn't what happened.

"The sheriff had assured us this program would not end up being a dragnet for low-level offenders, especially people with only driving infractions," Fotopulos says. "He was unwilling to make the changes to the program necessary to avoid all of those problems, but he was very interested in engaging the community."

Fotopulos left the council after three years. Two years later, and after about 10,000 undocumented immigrants had been put into deportation proceedings, Hall announced the program had been "so successful," it was no longer necessary in Davidson County, and declined to renew his agreement with ICE. But over the course of the five years the policy was in effect there, the sheriff's office began losing money when ICE agents realized they could save money by picking up detainees quickly, and not having to pay a higher per diem ($62 per day) to keep them in Davidson County. The per diem to keep detainees in federal immigration jails costs about half as much. That's not to mention the outcry from the community against the clear abuses of the program, like the documented cases of racial profiling.

One of the things that most concerns Fotopulos about Knox County's quest to implement 287(g) is the sheriff's lack of communication and outreach prior to implementation.

"If our program, with good intentions and good communication and transparency, fails, in a sort of costly and dramatic way, what are the hopes for a program that doesn't have any of those things going for it?" Fotopulos says.

But it's not just lack of transparency—Fotopulos worries what it will mean for immigrant families' safety in the community.

"As the relationship between the immigrant community and law enforcement deteriorates, they will become easy targets for crime. Once it's clear that you can do a home invasion on a Latino family because they're afraid to call the police, then Latino families will be targets for home invasion. And the overall crime in Knox County will increase and everyone will be less safe," he says.

***

The 287(g) program isn't just a program dreaded by Tennessee advocacy groups. It's been discredited by more than one study, and the Department of Homeland Security has been decreasing the amount of money requested to fund the program over the last few years. DHS requested $51.3 million in 2013, which was 25 percent less than the 2012 request for $68.3 million to pay for 287(g) agreements. The budget request document stated it was reducing the funding for 287(g) in order to make Secure Communities a more efficient program. Secure Communities is already in effect in Knox County, and operates similarly to 287(g), but requires sheriff's deputies to send finger prints of suspected undocumented immigrants to ICE for screening, instead of allowing deputized officers to determine whether the person does not have proper documentation.

A 2009 report from the Government Accountability Office found that ICE needed tighter controls in the 287(g) program to prevent further abuses. The GAO received good reviews of the program from 25 of the 29 agencies using it in 2008, but, the report says, "more than half of the 29 state and local law enforcement agencies we reviewed reported concerns members of their communities expressed about the 287(g) program, including concerns that law enforcement officers in the 287(g) program would be deporting removable aliens pursuant to minor traffic violations (e.g., speeding) and concerns about racial profiling." And one of the conclusions the report made was that "without documenting that the objective of the program is to remove aliens who have committed serious crimes or pose a threat to public safety, participating agencies may further burden limited detention resources by continuing to seek ICE assistance for aliens detained for minor crimes."

This is actually one of the factors that led to the "Morton Memos" issued by soon-to-be-former ICE director John Morton in 2011, which re-emphasized that the program was intended to prioritize the removal of dangerous undocumented immigrants who had criminal backgrounds and committed "aggravated felonies" instead of removing otherwise law-abiding residents who had committed trivial offenses.

The report made it clear that participating agencies needed to be reminded that their priorities were "Level 1" criminals. Level 1 criminals have committed those aggravated felonies, and should be immediately issued a detainer. Level 2 crimes include one crime that could be punishable by more than one year in prison, or at least three misdemeanors (crimes punishable by less than a year in prison). Level 3 criminals are people who have been arrested for a misdemeanor.

In Davidson County, some of the first evidence that the program was going beyond its intended purpose was the sensational arrests of people for such minor crimes as driving without a license. Perhaps the most damaging incident to the perception of 287(g) was the 2008 arrest of Juana Villegas, an undocumented immigrant who was stopped for a basic traffic violation (she says no one ever explained to her why, exactly, the arresting officer pulled her over) while she was driving with her children in the car. She was nine months pregnant.

Through her translator, Villegas says she and her children were told to wait in the car until her husband and brother-in-law (who had a driver's license) could come pick them up. While waiting, a second officer arrived, and Villegas said they chatted, but never spoke to her.

"They were chatting, but they never informed [Villegas] that she was being arrested until her brother-in-law came. That's the first time they informed her she was being taken away," the translator explains. That is, she says, until her husband and brother-in-law arrived. "They told her to say goodbye to her kids because she wouldn't see them again. The police officer told her she would be deported."

She was taken to jail on a Tuesday, and went into labor on Thursday. She was taken to the hospital, where, she says, a female sheriff's deputy remained in the room with her back turned while Villegas changed into a hospital gown. Villegas then had one leg and one arm cuffed to the hospital bed throughout labor and after the birth of her fourth child. She was not allowed to contact her husband, let alone have him in the delivery room with her.

"The only thing she was doing was crying, crying. She just felt humiliated," the translator says.

She was allowed to have her newborn son with her throughout her hospital stay, but again couldn't contact her husband to make sure he took their son home when she was taken back to jail. She says a nurse tried to give her a breast pump to take with her, but the deputy said it was not allowed in the jail. (Davidson County spokespeople have confirmed to multiple media outlets that medical equipment like breast pumps are not allowed in the jail for anyone.) She was also not allowed to take the prescription pain medication prescribed to her by a hospital doctor.

Villegas was released the following Tuesday after going before a judge, pleading guilty to driving without a license, and being sentenced to time served. ICE also released her since they have a policy that allows nursing mothers to stay with their children.

The biggest strike against Villegas under 287(g) was that she'd been deported once before in 1996. Under the immigration laws on the books, re-entry after deportation is a felony, meaning Villegas could have been considered a "Level 2" priority case under 287(g). However, she's still in Nashville, still fighting for immigrant rights. Her case was ordered to be re-tried earlier this year, and an immigration judge has recommended she receive a U-visa, which is usually granted to immigrants who are victims of crimes.

Perhaps the most damning evidence that shows 287(g) became a tool for racial profiling and deportation of immigrants arrested for low-level traffic violations came in a 2012 American Civil Liberties Union study on the Davidson County program.

"Evidence indicates that the Sheriff's 287(g) agreement motivated some local police officers a) to stop perceived foreign-born people for minor infractions or pretextual stops and b) to arrest rather than issue citations to those individuals because of their racial or ethnic characteristics, thus facilitating their screening through the ICE database once they were in the Sheriff's custody," the study found.

In fact, only 18 percent of people arrested in Davidson County solely for driving without a license were deported in 2005. That percentage went up to 43 percent in 2010. The 287(g) program was implemented in 2007 and ended in 2012.

"Even the Davidson County Sheriff's Office itself reported in 2009 that 85 percent of those processed through 287(g) were misdemeanor arrests, and in 2012, that misdemeanor arrests account for ‘approximately 79 percent [of all those physically arrested] for the foreign born population,'" the study found, citing Davidson County's 287(g) five-year report published in 2012. The study also found that after 287(g) was implemented in Davidson County, the number of people were arrested and put into deportation proceedings for minor offenses increased by 15 percent, and the number of people arrested for serious crimes decreased by 21 percent.

The ACLU study also cited a survey of Latino Nashville residents done in 2008 by the National Council of La Raza and the Tennessee Immigrant and Refugee Rights Coalition, which found that 42 percent of Latinos knew of a crime that occurred that wasn't reported to police because of the fear of deportation. The same survey found that 54 percent of Latinos would not call police if a crime happened in the future.

"When people fear interactions with the police, crimes go unreported, the entire population feels the impact, and the community becomes less safe," the study says.

***

Fran Ansley, a retired UT law professor active in several social justice advocacy groups; De Ann Pendry, an anthropology professor at UT; and Meghan Conley, a sociology student who just completed her doctoral dissertation at UT, filed a FOIA request shortly after the July 2 public meeting with Jones.

"The FOIA is just the final expression of our frustration at not being able to find this out through some simpler process. I think it's also a recognition by others around the state who care about this stuff. We need to do something. So we've got the wonderful privilege of a pro bono lawyer who's helping us out with it," Ansley says, referring to the Ozment Law attorney Andrew Free, who assisted the trio in filing the FOIA. Ozment Law also represents Juana Villegas, and is one of just a few firms in Tennessee that specialize in immigration law.

The three women are all members of the Allies of Knoxville's Immigrant Neighbors, an advocacy group through which they've met, worked with, and befriended many immigrants here. At community forums, Pendry often helps translates people's stories. They learned, from Ozment Law's Free, in March 2012 that Sheriff Jones had applied for implementation of 287(g) in Knox County in 2009, and that ICE was moving forward with it. And so the three of them began calling the sheriff's office to try and find out what was going on, only to be met with silence. Free learned of the application through an open records request.

"What's been frustrating is the continued and utter lack of any information from Sheriff Jones about his thought process around this, his goals, any commentary," Conley says. "He said over and over and over again that he was declining to meet with us because he wanted to wait until he had more information from ICE."

More than a year after that first request, Jones attended the July 2 meeting, ostensibly to answer questions. Ansley, Conley, and Pendry say they were less than satisfied with any of the answers the sheriff offered at what Ansley calls "an uncommunicative meeting." There were several topics that did not get their due consideration, they say, including how he plans to address and prevent racial profiling, whether he will actually prioritize dangerous criminals over people who are simply picked up for minor traffic violations, how he'll effectively communicate with non-English speakers, and how he'll keep from marginalizing the immigrant population. So they filed the FOIA to have access to communication between ICE and Jones, in the hopes that it might reveal some answers.

At the July 2 meeting, Knoxville resident Carl Wheeler, who is black, told Jones that both he and his son had been racially profiled in Knox County. Jones responded by saying he'd never heard of anyone being racially profiled.

"For any person in America, in the land of Trayvon Martin, to say that we have no racial profiling here, and it will not happen, is just deeply, deeply unrealistic," says Ansley. "White people just didn't come in with those experience in their lives, so to them, the police seem like they're one way. But I just think it's the job of any law enforcement officer to know more about public perception and also real-life, concrete realities in the world. It's very disturbing and anxiety-producing to think that you might have a public official who actually believed that."

"When he denies those things are a problem, it makes me wonder if he has any plans for accountability or verification whatsoever," Conley says.

Jones also refused to compare Knox County to any other county that had used 287(g), saying repeatedly that the other places are completely different. Pendry says it doesn't matter if Knox County manages to "do it right," as Jones phrased it.

"It was clear that he had not read the reports about what had happened in Nashville, much less any other report. His claim is that all that doesn't matter because we are going to do it right. Well, all he has to do is implement the program as it's designed, and the same thing is going to happen. Why? Because they will pick up people for driving without a license," she says.

Jones also insisted that "unless you commit a crime, you will never know 287(g) exists."

"It's one of the most bizarre things that Sheriff Jones has said again and again, especially at that forum," Conley says.

"If you take that at face value, he can be technically correct," Pendry says.

"Except that you're innocent until proven guilty, so there's a whole bunch of reasons in which that is a nutty thing to say," Ansley says sternly. "They have a duty to treat every person with due process regardless of citizenship status."

The three are obviously hopeful that 287(g) will not be implemented in Knox County, but Conley says they're prepared for the worst.

"We're not going to give up. We would prefer Sheriff Jones would withdraw his application. Barring that, we hope ICE will decide, based on the community outcry, that they do not want to pursue the program here. But if the sheriff proceeds forward with ICE's promotion, we are going to hold him accountable to the promises he's made. There will be no racial profiling. It will not increase costs to county taxpayers. We're not going to stop," she says.

***

Fotopulos, the executive director of TIRRC, has been doing everything he can to persuade the federal government not to go forward with the agreement. Two weeks ago, he went to Washington, D.C., and met with high-level federal administration employees about the matter. The meeting was off the record, and Fotopulos will not say who exactly he met with, only that those at the meeting are "people who liaise closely with DHS." He delivered the letter recounting Jones' lack of transparency about 287(g), which was signed by several advocacy groups.

Local advocacy groups are hopeful that letter will influence ICE's decision on whether to sign off on the 287(g) agreement with Knox County, but that remains to be seen.

"Officially, no decision has been made," says Bryan Cox, an ICE public affairs officer.

But that's not the sense immigration attorney Andrew Free gets. Free says "given the direct assurances from the White House to community leaders and written communications I've seen from DHS [Office of Civil Rights and Civil Liberties], is that if the Knox [County] 287(g) program isn't dead, it's certainly on life-support. The remaining question is who in the federal government is unwilling to take Washington's lead and just pull the plug. More important than ‘who' is ‘why.' In the past two years, we've seen the Obama Administration essentially admit that there are no good reasons left to continue entering into 287(g) agreements. That leaves only bad ones."

"There's nothing that decisive out there. What we have is broad guidance that [287(g)] is not a good use of resources, and that DHS won't be spending any more money on it. And the very specific sort of absence of confirmation that they're going to sign this agreement," he says. "I think it's irresponsible to create this much uncertainty. The idea of the program...has created a lot of anxiety and fear in the community. There's some psychological damage just from the uncertainty the sheriff has created."

On Aug. 5, the Comite Popular, several clergy members, and the AKIN group gathered on Market Square to send the message to Rep. Jimmy Duncan that the community is ready for immigration reform. The main argument from those who spoke was that immigrants are a boon to the economy.

The group of about 100 people—immigrants and allies—marched quietly down Gay Street to the federal courthouse on Cumberland Avenue, and then back to Krutch Park. A man carried a sign listing a handful of ways immigrants contribute to the economy: purchasing food, homes, cars, working, and paying taxes. "Please say yes to immigration reform," the sign urged. "No to 287(g)."

At the end of the walk in Krutch Park on the sidewalk facing Gay Street, the Rev. John Gill, pastor of the Church of the Savior, and the Rev. Jim Sessions, who works with Interfaith Worker Justice and is the president of Working America Education Fund, offered a parting prayer.

"Today our prayer is those who are already U.S. citizens, who already benefit from their labor, and for our community leaders," Sessions said.

"Help us, we pray, to remember that these workers, both documented and undocumented, are parents and children, husbands and wives, brothers and sisters, children of God, just like us," Gill said. "Help us, we pray, here in our community to choose a spirit of love and welcome over fear and exclusion...a spirit of freedom and liberty over unnecessary arrests and detention."

Together the crowd chanted, "Give us the courage to live up to our own ideal."